universal-fashion-art-music et allied products: MASSACHUSETTS TRIAL COURTS: SHERIFF COULD BE SUED ON PERSONAL AND OFFICIAL CAPACITIES

MASSACHUSETTS TRIAL COURTS: SHERIFF COULD BE SUED ON PERSONAL AND OFFICIAL CAPACITIES

Law Offices of Egan, Flanagan, Cohen, P.C. misfired legal argument on immunity that the sitting court should dismiss Complaint because Sheriff was sued on his official capacity or as Sheriff of Hampden County. With or without the clause of Pro se or Attorney of Record, no could will dismiss such Complaint on the argument which the law office put forward to the Presiding Judge.

___________________________________________________________________________

Commonwealth of Massachusetts Plymouth, ss. Superior Court Department

CIVIL ACTION NO. PLCV2011-01260

Phillip Ofume (Pro se and Forma pauperis) Plaintiff

Holyoke Police Department (HPD), Sheriff of Hampden County, Department of Housing and Community Development (DHCD), Department of Transitional Assistance (DTA), Karen Giard, New England Farm Worker Council (NEFWC), Anna Morales, and Department of Children and Families (DCF),

________________________________________________________________________

PLAINTIFF, PHILLIP OFUME'S VERIFIED MOTION/MEMORANDUM IN SUPPORT OF OPPOSITION TO DEFENDANT'S SHERIFF OF HAMPDEN COUNTY MOTIONS TO DISMISS AND OPPOSITION MADE PURSUANT TO MASS CIV. PROCEDURE RULES 12(a)(b)(d), 10, 9, 8, 5 & 4, AND SUP. COURT RULE 9A & 9E

________________________________________________________________________

A. STATEMENT OF MOTION/ANALYSIS

Here comes Plaintiff, Phillip Ofume's Motion in support of his Memorandum of Opposition to Defendant's (Sheriff of Hampden County) Motion seeking relief of this Honourable Court to dismiss Plaintiff's Complaint against the Sheriff, HPD and others and the motion must be dismissed because the Mass General Law, Mass Rules of Civil Procedure, Mass Superior Court Rules and other law body require that the Hampden County Sheriff maybe sued and process served personally or officially pursuant to M.C.P.R. 4 (a)(b)(c)(4); that Plaintiff's Complaint pleaded the extra-judicial action of the Hampden Sheriff on/in several pages and paragraphs; that the Sheriff in charge of process and service altered Plaintiff's Complaint as other sheriffs have done to his cases as path to implement political sanction/eviction/homeless against Plaintiff and his family which started in the United States since January 27 2006 (EXHIBIT A); Motion to Dismiss is falsified under Mass. Sup. Rules 8 and 9E; Motion to dismiss filed after the expiration of the statutory timeframe, M.C.P.R. 12a; sheriff union and other law enforcement outfits are protecting their own people by blocking process service on Sheriff of Hampden County and service was made after petition and motion to fire Sheriff to this Court; etc. Defendant's Motion to Dismiss appears to have been commmenced and concluded without reviewing Plaintiff's Complaint and contesting it per fact and same which comes with multiple abuses of the rights of the Plaintiff and his children and family including abuse of the Mass and federal constitution and other human rights laws such as branding Plaintiff and his family trespassers in family shelter provided to them by the agency (DHCD) of the Commonwealth of Massachusetts and enjoyed this unlawful leverage to arrest, detain, handcuff, charge, prosecute (and) Plaintiff without investigation and extended these abuses to seize and parade innocent children and ex-communicated them and market them to strangers and made them suffer physical and psychological tortures; because of the foregoing Defendant's Motion must be dismissed with prejudice. In support of this Motion , Plaintiffs submit hisVerified Memorandum of Law, argument, exhibits and other material references/evidences on behalf his family and children which is hereto adequately incorporated and submitted and served upon all parties in this case.

B. MEMORANDUM

BACKGROUND FACT

2. Strongly, Plaintiff oppose Defendant, Sheriff of Hampden County and this Memorandum will draw up a wide array of classification as to reason Defendant's Motion to Dismiss is manufactured as justice obstructive tools to hide the extra-judicial action of the Defendant on January 31, 2011 in which the Defendant, Sheriff of Hampden County was a major commander-in-chief of this ugly action which brought shame to the judicial system, law and constitution of the Commonwealth of Massachusetts and the United States of America.

3. The Sheriff or Deputy Sheriff in Massachusetts and their Union were conservative and protective of their own colleagues and severally refused to serve process without advancing any rason and each time Plaintiff send complete package of Summons, Complaints and other documents, they will censor or hide the documents and claim that they did not receive the documents. After several subnissions, Plaintiff moved protests to the Superior Court and before Clerks (Clerk and Assistant Clerks of the Courts). Plaintiff suggested before the clerks that they will be witnesses in this incident. They prepared another package of Summons and all other documents. Each time the package was prepared and stamped and all signatures entered as they did in all other summons and supporting documents and the complete packages were mailed by Plaintiff to Suffolk, Hampshire, and Hampden Counties. All the costs were paid by the Plaintiff and punitive under on-going sanction against Plaintiff and his family.

4. When Suffolk, Hampshire, and Hampden Counties denied receipt of this clear evidence, the Superior Court Clerks were alarmed and the clerks prepared another package and Plaintiff prepared petition against the Sheriff, lawmakers, politicians, governor, bar association, etc to request them to stop sheriff from serving process across Massachusetts because Sheriff is corrupt and discriminatory and would cause irresparable harm to innocent people including Plaintiff and his family. Plaintiff intends to prepare a bill to state lawmaking assembly and Plaintif also filed Motion addressed to The Hon. Justice Charles J. Hely (EXHIBIT A). This Motion or EXHIBIT A was shared by an unknow person and immediately two sheriffs of counties (ID reserved) telephoned Plaintiff to condemn their staff and that theey have found the summons and promised that the services will be done immediately and PROOF OF SERVICE will be sent to Plaintiff and the sitting Court or Plymouth Superior Court, Brockton, MA. See EXHIBITS B and C.

5. The Sheriff of Plymouth County or Clerk of Southeast Housing Court did the worst because Summons were prepared by the Clerk/Magistrate of the Southeast Housing Court, Brockton, MA and Dr. Ofume's Supplemental Statement of Complaint attached was seven (7) pages but the Sheriff served only one (1) page of the seven (7) pages. The major evidence of Plaintiff is contained in the censored six(6) pages to obstruct justice in the political 9th Eviction/Homeless case brought against Plaintiff because Plaintiff has launched his Presidential Campaign 2015 earlier than all known and unknown candidates for the President of Nigeria 2015. Each time he launches his campaign and when election is close, eviction and homelessness are carried out and harsh sanction is imposed against Plaintiff and his family.

6. Pursuant to M.S.C.R. 8(a), Plaintiff seriously objects the sworn affidavit evidence of Kathryn Fitzgerald mentioned in his EXHIBIT A because it was sworn to obstruct justice in this case. The Hampshire County Deputy Sheriff appears to exhonerate himself from the moneyed action of staffs in the sheriffs' office in Suffolk, Hampshire, and Hampden Counties. Kathryn Fitzgerald lied when he/she claimed that no SUMMONS were NOT included whereas summons, complaints, etc were attached and fully incorporated. The proof of these smart lies under oath is the PROOF OF SERVICES with summons and other documents which the Deputy Sheriff of the Hampshire County endorsed and mailed to Plaintiff. EXHIBITS B and C and C maybe numbered serially as C.1., C.2., etc because there are several other documents. Plaintiif is, Pro se and Forma pauperis and will be filing his opposition in accordance with Document Reduction Act.

Massachusetts Superior Court Rule 8: Objections to Evidence

"In civil actions, pursuant to the provisions of Mass.R.Civ.P. 46, and in criminal actions, pursuant to Mass.R.Crim.P. 22, if a party objects to the admission or exclusion of evidence, he may, if he so desires, state the precise grounds of his objection; but he shall not argue or further discuss such grounds unless the court then calls upon him for such argument or discussion. (As amended June 26, 1980, effective September 1, 1980)"

7. The responding Counsels viewed Plaintiff's Complaint form personality standpoint and did not read the infractions which originated the Complaint. In Canada, Nigeria and USA Plaintiff has been graded high from court to court and through the United Nations. Plaintiff's Complaint is plain, simplified, short, and substantive relief and alternative relief were clearly stated pursuant to Massachusetts Civil Procedure Rule 8 ( General Rules of Pleading).

. Plaintiff has been rated by the United Nations and Canadian/US Judges as one of the most eloquant speaker, advocate and writer. See Ofume v. Government of Canada at the United Nations, US and Canadian courts, lower courts to the Supreme Courts of Canada and United States. Plaintiff's Complaint is written and presented in accordance with the

Massachusetts Civil Procedure Rule 8: General Rules of Pleading,

"(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded."

8. Notwithstanding that Defendant's allegation in his/her Statement of Motion and same repeated found in overburdening rate in several parts of his/her memorandum is Rule barred. Because of the fact that the allegation surfaced and re-surfaced paragraph to paragraph, Plaintiff decided to openly oppose the slipplery allegation that Plaintiff sued the Hampden County Sheriff in his/her personal capacity. Plaintiff sued SHERIFF OF HAMPDEN COUNTY on his/her official capacity because several pages and paragraphs of Plaintiff mentioned Sheriff of Hampden County. Plaintiff did not sue Michael J. Ashe, Jr and mentioned these names in his ComPlaint. One of the "suit papers" mentioned in paragraph 4 of the Affidavits sworn by Kathryn Fitzgerald is not Plaintiff Complaint. Same vein, the Clerk of Court removed this Complaint from the case file and the former Judge did not question them. During case file reviews Plaintiff did not see his Complaint (EXHIBIT D) in his case file. Sheriff of Hampden County on his own power cut/removed and censored several parts of Plaintiff's Complaint. Also online, several parts were deleted to hide the truth and fact in this case. Posted on the facebook of the Trial Court Library and swiftly removed immediately within minutes of posting and publication. Exhibit A of the Affidavit of Kathryn Fitzgerald which maybe referred as altered Complaint of the Plaintiff was recreated by the Defendant. The Court's Clerk/Magistrate also removed the Compliant from the case file. Plaintiff went to the court several times and few times he was allowed to review his case files. When he (Plaintiff) was allowed to review his case files. The Complaint opposed and others were not on file.

Whether or not the Sheriff of Hampden County was sued on personal and official capacities drop no ice on the infraction or breaches to reduce the harm carried out against Plaintiff and it's not requisite to foster condition to dismiss this type of Complaint. Former Judge and Clerk, harmed Plaintiff's Complaints by consolidating several different cases or complaints as if they were same or similar cases or complaints.

See Massachusetts Civil Procedure Rule 21: Misjoinder and Non-Joinder of Parties:

"Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative, after hearing, at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately."

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9. Paragraph 7 of Defendant memorandum opposed is a big misinformation to obstruct course of justice in this case and must not be allowed. In paragraphs 3, 4, 5 and 6 there are unnecesary debates concerning the questionable affidavit of kathryn Fitzgerald which wasted several paragraphs on personal and offiocial services. Time and energy must not be wasted on simple matter which the operating rules have resolved. It is clear that because the Sheriff of Hampden County was sued on his/her official capacity that's why he/she was served on his official capacity. The Summons, Complaint and other documents relating to Plaintiff's Complaint respected MCPR 5(a)(b)(c) and MCPR 4(a)(b)(c)(d)

C. PRELIMINARY ARGUMENT: UNLAWFUL ACTION OF THE SHERIFF OF HAMPDEN COUNTY ON BEFORE JANUARY 31, 2011

10. Even little child maybe aware and knows that defendant and its assigns and servants received money from the oil/gas companies to ignore court process and proceedings. The extra-judicial process speed applied to render Plaintiff homeless and seize his children show that The presiding Hon. Justice and Clerk/Magistrate of the Courts are suspects because decision denying Plaintiff's Motion to Reconsider swift Order dated January 24, 2011, Motion for Stay of Execution, Notices of Appeal, etc were firmly pending in Courts (Mass Court of Appeals and Springfied Superior Court) and service made on all parties including Sheriff of Hampden Court, Holyoke Police Department, courts below and above, property vendors and employers, etc. before January 31, 2011.

11. Swiftly absentia and without hearing, Decision on Motion to Reconsider was made on January 27, 2011 and mailed to Plaintiff on January 28, 2011. Because Plaintiff was telephoning the Court almost every two or less hours, on Janauary 27-28, 2011 by rumor, Plaintiff was told that the decision was rendered and mailed out to him on January 28, 2011. Between January 28, 2011 and morning of January 31, 2011 Plaintiff has filed and served all defendants (by hand, e-mail and regular mail) Plaintiffs/Respondents NOTICE OF APPEAL, refiled MOTION FOR STAY OF EXECUTION and letter requesting for record of proceedings to Mass Court of Appeals were filed and served on all parties, including Sheriff of Hampden Court. Without allowing the Defendant/Plaintiff receive the decision mailed to him on January 28, 2011 and appeal and without allowing the Appeals to proceed and when Motion for Stay was pending in the court, also they (defendants) ignored opposition of the Commonwealth of Massachusetts dated January 28, 2011; ignored pending Appeal, ignored Motion for Stay of Execution, etc and in paid rush on January 31, 2011 morning the HPD, Hampden County Sheriff and others raided disputed apartment and evicted Plaintiff and his family and Plaintiff was arrested, detained and charged without investigation, children (five) arrested and seized and moved to distance place into the hands of strangers or child marketers when second parent is available to take care and custody of the children.

D. QUESTION IN ISSUE CONTRARY TO STATING CLAIM AGAINST PLAINTIFF'S COMPLAINT

12. Whether Court will dismiss a Complaint outside statement of factual claims against the Complaint under contest because Plaintiff sued Sheriff of Hampden County and he did not sue a person called Michael J. Ashe, Jr.

D. ARGUMENT

For the reason foregoing, Plaintiff request leave of this Court to assign numbers to his argument.

13. Whether Sheriff of Hampden County was sued on his/her official or personal capacity is not a big deal of claim for relief. That service on him/her or his staff, agents, privies and servants is done according to operating court and other rules and in good faith is the big deal which must be celebrated to waive severe forms of breaches upon the rights of the plaintiff and his family.

14. Counsel for the Defendant emerged with the same defects as other defendants because of consolidation of unrelated complaints to the extent that Defendants Motion and Memorandum page to page failed to raise any issue to dismiss Plaintiff's complaints of serious breach of the human rights and other statutes and regulations of the Commonwealth of Massachusetts and particularly first,fourth and several Amendments of the Constitution of the United States and also founded on Tort cases of 1983 or 42 U.S.C. § 1983 which failed to waive unimmuned action of the defendants against the Plaintiff and his family.

15. Process service on Defendant respected the rules of civil procedure. Agencies and their staff are liable personally, officially and jointly. The most important cases which explicitly defined personal and official immunities within and outside workforce/place are the case of Ofume v. George W. Bush et al (The Supreme Court of the United States Docket No. No. 08-8873) with firm argument that President Bush can not enjoy unqualified absolute immunity. Below the same court ruled that president in office does not have presidential immunity from suit over conduct unrelated to his official duties.

16. Also in the case of "Clinton v. Jones, 520 US.681, 117 S.Ct. 1636, 137 L.Ed.2d 945 (

1997), in part this Court or The Supreme Court ruled that President Bill Clinton may enjoy qualified absolute immunity from civil lawsuits seeking damages from presidential actions but on the unqualified absolute immunity the same court ruled that president in office does not have presidential immunity from suit over conduct unrelated to his official duties. The Court is firm to its ruling because the Court entered outright self-defense with closure against the governors and other public officials" In other cases, under 42 U.S.C. § 1983 and enlongated pursuant to First and Fourth Amendments of the Constitution of the United States, the First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe.

17. Entire Defendant's Motion to Dismiss, did not oppose specific Complaint of the Plaintiff against the Defendants and as such Plaintiff's must proceed through course in search for justice via just rule. "Dismiss and Dismissed" surfaced page to page without opposing the actions which Plaintiff claimed against Defendants.

18. Defendant's opposition that "Plaintiff or his agent served Sheriff of Hampden County, an employee of the County," and in the other side that the Sheriff of Hampden County is not Mr. Michael J. Ashe as if the Plaintiff knows Mr. Michael J. Ashe whereas on January 31, 2011 the known and unknown men and women on uniform and plain clothes in part merely introduced themselves saying, "we are sheriff of hampden county...we are holyoke police officers..etc" and none of them said, I am Mr. Michael J. Ashe.

19. I am a person not officer fails to enclose potential to enjoy shield in nature of qualified immunity as if employee under official and unofficial clouts would be above the law and/or can not be liable personally for his/her own action with/without employer pursuant to The Constitution of the United States of America - 42 U.S.C. sec. 1983 or Bivens action; 8th Amendment to the United States Constitution; official and unofficial immunities and responsibility or of employees and employer vis-a-vis these immunities. When bad commission is made, there is no shield for both employee and employer and corporate body and in larger spectrum including President and Congressmen/women of the United States of America and other nations.

20. In this type of Complaint (pro se and related others), several judgments including the Supreme Court of the United States ordered that if court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with rule requirements. Now here comes, Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).

21. Under Rule 12(b)(6), the "complaint should not be dismissed merely because in part defendants are crown of the Commonwealth of Massachusetts or the defendants assume that the allegations do not support the particular legal theory they personally imagine. The court is as usual under oath of duty to examine the complaint to determine if the allegations contain claim which contain substance which they miscontructed in their mind by assumption. See Bowers v. Hardwick, 478 U.S. 186, 201 (1986) (emphasis supplied). Consideration added in Pro se case is different but Plaintiff's complaints match formal complaints filed by attorney of record.

22. On February 3, 2012 in all the Plaintiff's Complaints, a, b, c, and d the Order Regarding Complaint Status of The Presiding Honourable Justice Charles J. Hely has summarized a stay of the type of Motion which the Defendants are filing with the Court and reason to allow Court determine the faith of these Complaints.

23. The cases cited below maybe able solve the concerns of the defendants:

Further question in issue is whether is even necessary that a " plaintiff or defendant request appropriate relief, properly setout caselaws and formulate legal theories, categorically organize point by point to create legal theory as lawmaker ought to do. Toll v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir., 1992). In accordance with the Mass. Superior Court Rules 8 and 7 clearly state initial complaint does not require to point to appropriate status or law to raise a claim for relief;

complaint sufficiently states a claim even if it points to no legal theory or even if it points to wrong legal theory, as long as "relief is possible under any set of facts that could be established consistent with the allegations") (emphasis supplied)

The Defendants The party moving for dismissal must show "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46. (emphasis supplied)

Moreover, the likelihood that a plaintiff will ultimately prevail on his claims has no place in determining whether or not to grant a motion to dismiss. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (issue is not whether plaintiff will prevail but whether claimant is entitled to offer evidence to support claims)

Additionally, when making a determination as to the sufficiency of a complaint, initial pleadings must be construed liberally. United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 549 (5th Cir. 1890). This is especially true for a pro se Complaint under Haines v. Kerner et al., 404 U.S. 519."

D. CONCLUSION/RELIEF

Because of the foregoing defendant Motion must be dismissed because it failed to oppose the subject and other matters which are contain in Plaintiff's Complaint. Official name and person of the Sheriff of Hampden County are not claims that can be blessed with relief of any magnitude to dismiss a Complaint which comes with multiple abuses of official or qualified and personal immunities, child's and parents' rights, Mass and federal constitution and other human rights laws such as branding Plaintiff and his family trespassers in family shelter provided to them by the agency (DHCD) of the Commonwealth of Massachusetts and enjoyed this unlawful leverage when the situation was visibly no fault and they proceeded to evict, arrest, detain, handcuff, charge, and prosecute Plaintiff without investigation and extended these abuses to parade innocent children and seized and ex-communicated them and market them to strangers and made them suffer physical and psychological tortures; and because of the foregoing Defendant's Motion must be dismissed with prejudice.

VERIFICATION

Here comes Plaintiff respectfully verified, signed and submitted foregoing, under Pains and Penalty of Perjury states that the foregoing facts are True and Correct,

_________________________

PhillipC.Ofume, Ph.D.

Plaintiff on behalf Mrs. Maureen N. Ofume

and seven children ,

506 Warren Av, Apt. 2

Brockton, MA 02301

Tel. (781) 479-9027

ofume.phillip@gmail.com,limptintinc@gmail.com

cc. Messrs. Jennifer Mather, Anna Morales, Deborah Goddard, Tracy A. Niner, Giard Karen, NEFWC, Hampden County Sheriff, HPD and Law Offices of Egan, Flanagan, Cohen, P.C.

In support of this Motion or Application, Applicants

submits-Verified Memorandum of of Law, argument, exhibits and other

material references/evidences which is hereto adequately incorporated

and submitted and served upon parties.

Respectfully verified, Signed and submitted under the pains and

penalties of perjury this 22nd day of February 2011,

Law Offices of Egan, Flanagan, Cohen, P.C.

67 Market Street

Post Office Box 9035

Springfield, MA 01102

Telephone: (413) 737-0260

Fax: (413) 737-0121

Email: efc@efclaw.com

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Wednesday, February 22, 2012

MASSACHUSETTS TRIAL COURTS: SHERIFF COULD BE SUED ON PERSONAL AND OFFICIAL CAPACITIES

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